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When the Left Shoots Itself in the Foot (IHL Version)

22 May When the Left Shoots Itself in the Foot (IHL Version)

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:

Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon.

Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.

Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.

At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals:

Disguise it whatever propaganda terms you want, but the clear meaning of his threat to kill civilians is plain. [Simply dishonest. Watch the video yourself — the comments start at about the 9:00′ mark.]

Yes I’m sure you would talk about Hamas willingness to “accept civilian collateral damage.” [I tried to explain that, in fact, Hamas would not be committing a war crime if it launched a proportionate attack. Fell on deaf ears.]

No. *You* are accepting propaganda justifications at face value. Lebanese villages are not military targets. [No response when I pointed out rocket launchers are military targets., even when located in a village.]

Israeli army habitually transports soldiers on civilian public transport. Were Hamas bus bombings also “potentially legal”? [I tried to explain here that we had to distinguish between war crimes and violations of domestic law. The correct answer, of course, is that such attacks might not be war crimes (if they were proportionate) but would still be murder under Israeli law, because Hamas does not qualify as the armed forces of Palestine and thus does not have the combatants’ privilege to kill. That was obviously too “legal” for Winstanley, because…]

“Complicated” — yea right. Wasn’t so complicated for you to declare Israeli attacks on civilians “potentially legal”. [Not what I said, of course. I said Israeli attacks on military targets that incidentally kill civilians — the kind of attacks Ya’alon was discussing — were potentially legal, depending on their proportionality.]

And yet you use all your lawyer’s tricks to avoid a simple question: were Hamas bus bombings “potentially legal”? Y/N [By “lawyer’s tricks,” Winstanley meant the distinction between war crimes and crimes under domestic law. Apparently, all legal questions must have a simple answer — one that satisfies Winstanley’s moral sensibilities.]

And give YOU a break?!? You are the one sliding into my mentions uninvited. If you want a break, I suggest you piss off. [I said “give me a break” when Winstanley continued to insist, contrary to multiple tweets, that I was arguing it was legal for Israel to deliberately attack civilians.]

And that was that.

I don’t know whether Winstanley’s selective quoting of Ya’alon reflects dishonesty or simply a complete lack of understanding of IHL. Regardless, my twitter exchange with him is very frustrating, because anyone who reads Opinio Juris regularly knows how critical I am of Israel and the IDF — and never more so than during Operation Protective Edge. I am not Winstanley’s enemy; far from it. Yet he could not be bothered to engage with me rationally, much less acknowledge that he might have misunderstood Ya’alon’s comments. (Which seems to suggest dishonesty, not lack of understanding.) Instead, he immediately branded me some kind of reactionary Israel apologist and repeatedly attacked me. Zachary Korman nailed it in a tweet: “@kevinjonheller is under attack for being pro-Israel (which he isn’t). This is the twitter equivalent of friendly fire.”

The problem with the exchange isn’t that Winstanley criticised me. I have a pretty thick skin after nearly a decade of blogging. What bothers me is that Winstanley’s stubborn insistence on misrepresenting Ya’alon is actually profoundly reactionary, because it obscures all of the possible legitimate criticisms of what Ya’alon said. He could have denied that there was a rocket launcher in the civilian house and criticised Israel for not taking adequate precautions to avoid attacking civilians. He could have accepted that a rocket launcher was in the house but insisted that the incidental damage to civilians was excessive in relation to the military advantage of taking out a single rocket launcher. (Which is my position, as I noted above.) He could even have argued that Ya’alon was simply lying about the rocket launcher, because the attack was actually an example of the “Dahiya doctrine” (which he obliquely mentioned in a different tweet) in action.

Any of those criticisms could have led to a productive debate about Israel’s problematic approach to IHL — and perhaps even to a critical examination of IHL itself. But instead Winstanley insisted on misrepresenting what Ya’alon said, thereby not only alienating anyone who believes criticism should take its object seriously, but also misleading his readers about the basic principles of IHL.

And that is my basic point in this post. Winstanley’s version of pseudo-left critique may be great for stirring up readers who are already inclined to believe that everything Israel does is illegal. But it is useless for persuading anyone who doesn’t — including people like me who are otherwise natural allies. Nothing is accomplished — literally nothing — by caricaturing the views of those we disagree with or by distorting the rules of IHL. In so cavalierly doing both, Winstanley simply becomes the mirror image of Israel apologists who insist, literally as a matter of faith, that Israel is incapable of using force illegally. The truth, of course, is somewhere in between: Israel often violates the rules of IHL, sometimes shockingly so (the carpet bombing of Shujaiya); but it equally often complies with IHL, however grisly the results of its violence. Intelligent critique — critique that has the potential for convincing more than just the anti-Israel true believers — must always carefully distinguish between the two. It’s called intellectual honesty.

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s.

Personally, I feel uncomfortable both with Winstanley and Jon Heller’s comments. Winstanley selectively quoted Ya’alon (regrettable) and Jon Heller provided weak arguments such as the “[…] combatants’ privilege to kill […]”. Usually this is not the case.

3 years ago

Yael

Hi Kevin,
I’m impressed at your patient engagement. Anyway, just a query: You note that Hamas does not have the combatants’ privilege to kill. If so, how can its attacks be “proportionate” (in which case you say that thy would not be war crimes but only crimes under domestic law)? proportionality implies a permissible conduct, does it not?
BTW – I doubt that by “lawyer’s tricks,” Winstanley meant the distinction between war crimes and crimes under domestic law. He might have meant that law was besides the point. He would not be the first to think so.

3 years ago

el roam

Brilliant post , Yet Kevin, from huge experience, it seems that you ignore a basic perception, in that complicated matter: General distinction between left ( the ultra modern ) and right , goes as follows : While the left , considers the human being as the purpose , and never the mean , the right : Considers rather the human being as mean , for greater purposes ( land , god , state , holiness , religion and so forth ….) . In such Kevin, there is no way in the world , whatever , that a leftist , surly an extremist , would ever consider : Killing of 500 children in a war ( among others , recent operation in Gaza ) as : legal , moral , reasonable , in no way !! Even if you would prove to him that it was legal , it wouldn’t matter !! Because result of such, and legality, can’t reside or dwell together !! whatever !! cannot be reconciled whatever !! One who reads your post , can assume surly , that killing 5 civilians for exe , may be legal and justified in the right circumstances !! But for them… Read more »

re: proportionality — where had the rocket been aimed? were prior rockets from the location hitting large numbers of civilians, military objects (of what significance)? Was there a terror purpose re: the firing of rockets and the next rocket would predictably have a terroristic impact? A nuanced consideration would involve inquiry into all aspects of circ., not merely whether one rocket was being destroyed.
re: unprivileged fighter, still civilians of any ilk can commit war crimes within a theatre of war (IAC or NIAC).

3 years ago

Ali

It is evident that Mr Winstanley does not have legal training. I am surprised that you expected a non-lawyer to be aware of, and understand, the distinction between war crimes and crimes under domestic law. Was it not foreseeable that a discussion with a non-lawyer on the intricate details of IHL (that even many lawyers are also not fully conversant with) may well have ended this way?

3 years ago

Akiva Cohen

Kevin,

Good post, and thank you for making it.

I will suggest one broader lesson to be gleaned from the interaction, though: the idea that assuming people you argue with are coming at their position in good faith, based on reason, rather than as “reactionary apologists”, is one that deserves wider applicability. It applies not only to those who agree with you on your assessment of Israeli policy, but to those who disagree with you as well.

It’s a lesson I myself forget too often, for which I apologize.

Best,

Akiva

3 years ago

Akiva Cohen

By the way, would you expand on the following: I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate. This seems a tough view to justify, whether examined individually or, even more so, systemically. On an individual view, is it really your view that killing 1 civilian as collateral damage in an attack on an enemy firing position is inherently disproportionate? I would assume that the answer is no (and feel free to correct me if I’m wrong). In that case, how do you manage the line-drawing exercise for any particular firing position (1? 2? 3? etc.)? Doesn’t it become a case-by-case analysis of the threat posed by the firing position, which would therefore prevent any argument that such an attack would be per se disproportionate, and require such case specific evaluation before making a judgment? More fundamentally, it would seem that the individual view is far too narrow. Assume for a moment that your view quoted above is correct – that it can never be proportionate to attack a rocket launcher positioned in a civilian home.… Read more »

@S — if you’re going to accuse someone of making a weak argument, you might want to (1) identify the argument, and (2) explain why you think it’s weak. Kind of difficult to respond otherwise. @Yael — from a war-crimes perspective, it doesn’t matter whether the combatant is privilege or unprivileged. As long as he complies with the laws of war, including the proportionality requirement, he cannot be prosecuted for a war crime. But that doesn’t mean he can’t be prosecuted for violating domestic criminal laws; in that context, the difference between privileged and unprivileged combatancy is critical, because a privileged combatant who complies with the laws of war cannot be prosecuted either domestically or internationally, while an unprivileged combatant can be prosecuted domestically even if he complies with the law of war. So a proportionate attack by Hamas isn’t a war crime, but it can still be murder — something I tried to explain in vain to Winstanley. @el roam — your point is well taken, but I’m not quite that cynical. I doubt the left and the right will ever convince each other, but I still think there are issues at the margins where reasoned debate, and even… Read more »

3 years ago

Jackdaw

@Kevin

You ‘manned up’!
You’re a truthseeker, and I respect you for that too.

Here’s an interesting quote, to juxtapose with what Minister Ya’alon had said.

I do not defend Winstanley’s approach, but isn’t it obvious that he thinks Moshe Ya’alon is fabricating a justification for the attack? That is, Winstanley is not really misunderstanding or misrepresenting what Ya’alon has said. Rather, he is stripping away what he believes is Ya’alon’s misrepresentation that there was any proportionality calculation at all (Ya’alon’s, “propaganda terms”). He is calling the attack for what he believes it to be – a deliberate, unjustified attack on civilians by the IDF.

You touch on this when you state that Winstanley, “…could even have argued that Ya’alon was simply lying about the rocket launcher…” I think that’s exactly what Winstanley was doing.

This seems an important point. A proportionality calculation can potentially be a tool used after the fact to justify behavior that would otherwise clearly violate IHL. An entity with lawful domestic authority to use lethal force – such as the IDF – could be particularly prone to this type of manipulation of IHL. If the aim of the attack is to destroy the only evidence that justifies the attack (i.e. the rocket launcher), how can anyone know whether that justification actually existed?

3 years ago

Steve

Electronic Intifada and Mondweiss are deranged, obsessed, anti-Israel hate sites that will never, ever, EVER share a single positive thing or even neutral thing about Israel.

I don’t understand how anyone who isn’t an anti-semite would ever rely on websites who seek to erase Israel from existence as source of information about Israel.

If some lunatic wanted to erase Italy as a country, and every single word he uttered about Italy was hateful and one-sided, why would any self-respecting person trust that lunatic as a source of info about Italy?

Yet somehow, lunatics anti-semites who want to erase Israel get quoted as trustworthy sources of information. I don’t see any other country treated this way. Nobody who wanted to erase Egypt would be considered a valid source on Egypt. Yet somehow Electronic Intifada gets trusted to report info on Israel? Seriously?

This is “the new anti-semitism.” Obsessed demonization of Israel, while ignoring the fact that the lunatics that surround Israel are crazed jihadists and Islamic fundamentalists who openly reject peace with Israel. Yet somehow Israel gets blamed for not handing land to jihad psychopaths who openly scream about exterminating the zionists 18 hours a day.

Thanks for your intelligent and reasoned contribution to this discussion about IHL. It’s always important to be reminded that there are mindless zealots on both sides of the debate.

3 years ago

Adrian

Since the discussion is now touching on the issue of proportionality, I have to ask: Can proportionality concerns apply to defenders as well under IHL?

That is, could an analogous rule to “launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited” [1] apply to a defender under IHL?

I’m thinking something akin to “placing a military target in a way such that an attack on it may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage for the defender as anticipated by virtue its positioning, is prohibited”

Since I’m no expert in IHL, is there any validity to this approach under IHL? Does it enter in conflict with any existing rules whatsoever? Is it consistent with the purpose of IHL?

3 years ago

Adrian

A small typo. The proposed rule should say:

“placing a military target in a way such that an attack on it may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage for the defender as anticipated by virtue [of] its positioning, is prohibited”

3 years ago

el roam

Adrian , challenging those war laws, is a bit of some complication, I don’t have time for it. but if you have interest to dig further a bit , you should notice : The terminology used by Kevin , was : deliberate attacks ( on civilians , although it is generally a precise description of customs of law or practices ) . One should notice, according to universal principles of criminal law, such practice constitutes in fact , deliberate attacks on civilians. Bit complicated , just follow carefully : Criminal laws, everywhere in the world almost , don’t give too much on pure desire , strict volition or intent ( as a layman perceives it ) but, rather, awareness to the results, natural results, probable results of the action of one perpetrator, here, let’s have for ex, a look to Texas penal code, here I quote: ” Sec. 6.02. Requirement of Culpability. (b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” As you can see, mental state of the act and the one of perpetrator, is indispensable as a… Read more »

3 years ago

Mendieta

Kevin,
Why would an academic use as a source electronic intifada (or any other similar “source” with such clear political agenda, being from the left or from the right) when there are so many English speaking Israeli newspapers that report the politicians’ statements in any case? And in response to what other commentators have said, although not having a legal background is certainly a handicap, I think the roots for these types of misleading reports often has to do more with the goals of the “source” rather than a lack of understanding.

3 years ago

Adrian

El roam: If I understand your point, what you are saying is that a defender cannot really have an awareness of the expected collateral damage resulting to civilians as a result of an attack on a military target as they are not the ones carrying them out, right? If so, I have to say I don’t really buy it – if anything, the prohibition of shielding would ban defenders from using civilians as fodder precisely so they get killed during an attack, to deter the attacker from doing so. The issue here, though, is whether some criteria of proportionality could arise even in instances in which shielding (through the use of involuntary shields) would not be really as obvious as holding some civilians hostages and using them as a barrier during an attack. Perhaps shielding could also be seen by the willingness to place targets in such a manner that way too many civilians would be damaged if they were attacked, compared to the military advantage the defender gains from having such military asset there – particularly since the attacker’s military advantage arising from attacking the said military target is composed, among other things, by the denial of the defender’s… Read more »

3 years ago

el roam

Adrian, you have missed the point. What I have argued , is that :

The notion ,or terminology of :

Deliberately attacking civilians or not (innocent, not involved) is irrelevant under common criminal law principals, since:

Whenever, a commander in the battle field, is only aware of the presence of civilians, and: aware of the result of attacking of even concrete and relevant military target while ” taking ” with it civiliances:

Then, he is committing a deliberate attack on civilians, everything according to very common criminal law principals.

The justification and the liability of such commander ,is another issue , but the attack itself :

Is a deliberate one, on civilians , despite the pure military goal or aim. Read again , and carefully .Nothing to do necessarily with human shield as such or not .
Thanks

3 years ago

JRP

Having read the Winstanley article referenced by this post, viewed the twitter exchange, and watched the Ya’alon video, I respectfully do not find support for Kevin’s charge of intellectual dishonesty. To be sure, Winstanley does not immediately place Ya’alon’s words concerning the killing of Palestinian citizens into context. However, Winstanley states as follows a bit further on in his article: “…Justifying Israeli attacks on civilians was the main theme of the conference. Speaker after speaker lined up to reinterpret international law so that it would, supposedly, allow the killing of Palestinian and other Arab civilians. This was justified with familiar canards about the supposed use by Palestinian resistance factions of ‘human shields,’ which then inevitably results in Palestinian civilian dead. In other words, Israel was being forced to kill civilians. Ya’alon did similar by saying that the civilian neighborhoods Israel had bombed had contained ‘rocket rooms.’…” Winstanley also disclosed Ya’alon’s June 2013 meeting with Ban Ki-Moon wherein Ya’alon sought to justify attacks by pointing out that the Palestinians had placed, “…terror assets in densely populated urban areas…” Clearly, Winstanley is acknowledging Ya’alon’s proportionality analysis and dismissing it as a, “…familiar canard…” If the proportionality analysis is a fabrication, that lends… Read more »

3 years ago

Cody S.

Engaging in this discussion is a bit like asking Milton Friedman to discuss whether Trotsky or Stalin’s vision for the future of international communism was the more persuasive. As evidenced by the “lawyers’ tricks” comment, there just isn’t enough of a shared paradigm to allow for meaningful discussion on this particular issue. I’m not suggesting that Winstanley is incapable of reasoned thought, but that his basic premises of what he accepts to be both factually true and morally legitimate are very, very different.

For those interested in more specifics about the latest Gaza operation, please tune in to Chicago PBS station WYCC- Channel 20 in Chicago (www.wycc.org) on three successive Sunday mornings in June to see the broadcast of an Urban Warfare Symposium:

Session 1: Operational Challenges will air on Sunday, June 13 at 11 AM CDT
Session 2: Ethical Challenges will air on Sunday, June 20 at 11 AM CDT
Session 3: Legal Challenges will air on Sunday, June 27 at 11 AM CDT

The operational challenges panel, in particular, is enlightening. An IDF Major General shares some of Israel’s intelligence in Gaza. I participated on the legal challenges panel with the IDF Military Adjutant General, who also provided some interesting insights.